NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 16-2786

___________

JOSE RAFAEL LOPEZ MENDEZ,

Petitioner

v.

THE ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A087-942-526)

Immigration Judge: Annie S. Garcy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 20, 2017

Before: RESTREPO, SCIRICA and FISHER, Circuit Judges

(Opinion filed: March 28, 2017)

___________

OPINION*

___________

PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Jose Rafael Lopez Mendez petitions for review of the final removal order of the 

Board of Immigration Appeals (“BIA”). For the reasons that follow, we will deny the 

petition for review.

Lopez Mendez is a native and citizen of Guatemala. His removal proceedings 

began in 2010, on charges of removability as an alien present in the United States without 

admission or parole (8 U.S.C. § 1182(a)(6)(A)(i)). Through counsel, Lopez Mendez 

conceded the charge of removability and designated Guatemala as the country of 

removal. He later filed an application for withholding of removal and deferral of removal 

under the United Nations Convention Against Torture (“CAT”), claiming that he feared 

being persecuted and tortured if he were to return to Guatemala.

During the proceedings before the Immigration Judge (“IJ”), Lopez Mendez 

described the dangerous conditions in Guatemala during the 1970s and 1980s, resulting 

from the conflict between the military and the guerillas. In 1982, after finishing high 

school, Lopez Mendez left Guatemala and came to the United States to work in 

construction, but he returned to Guatemala in 1985. In 1988, Lopez Mendez came back 

to the United States in order to provide a “better life” for his family. Lopez Mendez later 

learned that his father had been killed in El Salvador, the country of his father’s birth, for 

political reasons.1 Lopez Mendez stated that he fears returning to Guatemala because of

 

1 Lopez Mendez’s written statement supplied the year of his father’s death as 1989, but 

he testified that his father was killed in 1999. Also, although Lopez Mendez testified as 

to his fear of harm in El Salvador, the designated country of removal is Guatemala.
3

that country’s current problems with gang violence, although he has not had prior 

interactions with gangs. He explained that he likely would become a truck driver, and 

that truck drivers are at risk of being kidnapped or killed by gang members if monetary 

payment demands are not fulfilled. He noted that there is no safety in Guatemala because 

the police are informers for the gangs. Lopez Mendez also explained that his father had 

been a very wealthy priest before being killed in El Salvador, and he believed that he 

would be targeted as his father’s son. Lastly, Lopez Mendez argued that he feared future 

persecution as a member of a particular social group, that is, as a Guatemalan returning to 

the country upon removal, after having resided in the United States.

After considering Lopez Mendez’s testimony and documentary evidence, the IJ 

denied Lopez Mendez’s applications for relief and ordered his removal to Guatemala. 

Among other things, the IJ explained that Lopez Mendez failed to establish a link 

between his membership in his claimed particular social group and the harm that he 

claimed to fear, and that Lopez Mendez’s vague claims of fear regarding the dangerous 

and violent conditions in Guatemala were insufficient for granting withholding of 

removal or CAT relief. The BIA dismissed Lopez Mendez’s appeal, agreeing with the 

IJ’s determination that Lopez Mendez did not meet his burden of proof for withholding of 

removal, even if he had established his membership in a particular social group. Noting 

the absence of any evidence of threats made against Lopez Mendez, the BIA concluded

that he did not establish that he would be a target of persecution because of his father—in 

either Guatemala or in El Salvador—and that his general fear of gang violence was not a 
4

basis for withholding of removal. Finally, the BIA found no clear error in the IJ’s 

determination that Lopez Mendez failed to make the requisite showing for protection 

under the CAT.2 This pro se petition for review followed.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a). The BIA agreed with the 

IJ’s decision and added its own reasoning, and thus, we review the decisions of both the 

IJ and the BIA. See Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir. 2009). We review 

the agency’s factual determinations under the substantial evidence standard. See id. at 

251. The agency’s findings are considered conclusive unless “any reasonable adjudicator 

would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We 

exercise de novo review over the agency’s legal decisions. See Sandie, 562 F.3d at 251.

In his brief, Lopez Mendez contends that the agency’s denial of his application for 

withholding of removal and for CAT protection was erroneous. He restates his claim that 

he would be the target of gang violence as a member of his father’s family and as a 

“young male returning to Guatemala after a long residence in the USA,” noting that the 

Guatemalan government is unable and unwilling to control the gangs. Pet’r Br. at 2. 

Lopez Mendez relies on our decision in Shardar v. Att’y Gen., 503 F.3d 308, 317 (3d Cir. 

2007), in which we found fault with the BIA’s finding that the petitioner’s situation was 

not “appreciably different from the dangers faced by all his countrymen” in Bangladesh. 

 

2 Lopez Mendez argued to the BIA that the IJ’s denial of his motion to change venue 

constituted a denial of due process. He does not pursue this claim in his brief, so we will

not consider it here.
5

However, Shardar is distinguishable on its facts; there, the petitioner had suffered past 

persecution as a local political leader, and agents of the opposing political party had 

beaten and threatened the petitioner’s brother, with specific inquiries regarding the 

petitioner’s whereabouts. Thus, we concluded in Shardar that the evidence showed that 

the petitioner likely would be a specific target of persecution for his political beliefs. See

id., 503 F.3d at 316-17 (discussing evidence presented in context of motion to reopen 

proceedings). Here, Lopez Mendez did not present evidence as to any specific threats 

made against him by Guatemalan gang members, or by anyone else, for any reasons. 

Although Lopez Mendez speculates that he might become a victim of crime in 

Guatemala, the evidence does not compel a finding that gang members have any 

particular interest in him. Lopez Mendez’s general fear concerning prevalent gang 

activity in Guatemala, without more, does not establish his eligibility for withholding of 

removal. See Shehu v. Att’y Gen., 482 F.3d 652, 657 (3d Cir. 2007) (mistreatment 

resulting from gang’s bare desire for money is not persecution on account of a protected 

ground); Abdille v. Ashcroft, 242 F.3d 477, 494-95 (3d Cir. 2001) (ordinary criminal 

activity does not rise to the level of persecution).

In addition, Lopez Mendez cites Camara v. Att’y Gen., 580 F.3d 196 (3d Cir. 

2009), in support of his position that his testimony and evidence concerning current 

conditions in Guatemala, as well as concerning the death of his father at the hands of 

criminals, was sufficient to meet his burden of proof on his claims that he faces future 

persecution and torture. The situation presented in Camara was far different, however. 
6

The petitioner in Camara fled her native country after witnessing her father’s abduction 

from the family home by armed men; those men had accused her father of supporting 

anti-government rebel forces and had threatened the entire family with harm. See id. at 

198. In contrast, Lopez Mendez did not witness harm to his family members, he was 

never directly threatened with harm, and he was never forced to flee his home. There is 

no evidence that the tragedy of his father’s death at the hands of criminals in El Salvador

more than a decade ago will affect Lopez Mendez’s safety if he now were to return to 

Guatemala. We discern no error in the BIA’s conclusion that Lopez Mendez has not 

shown that it is more likely than not that he will suffer torture with the consent or 

acquiescence of government officials, as is required for obtaining CAT relief. See

8 C.F.R. §§ 1208.16(c) and 1208.18(a).

We have considered the arguments in Lopez Mendez’s brief and conclude that 

they are without merit.3 Accordingly, we will deny the petition for review. The motion 

to stay removal is denied.

 

3 Lopez Mendez states in his brief that his attorney did not properly present his claim of 

his membership in a particular social group, and that the IJ erroneously denied him 

temporary protected status (“TPS”). Because Lopez Mendez did not exhaust his 

administrative remedies on these issues, we lack jurisdiction to consider them. See

8 U.S.C. § 1252(d)(1).